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Abdul Waheed vs State Of U.P. And Others on 10 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on : 18.07.2019

Delivered on : 10.01.2020

Court No. – 28

Case :- CRIMINAL REVISION No. – 1949 of 2005

Revisionist :- Abdul Waheed

Opposite Party :- State of U.P. and Others

Counsel for Revisionist :- Sharad Kumar Srivastava

Counsel for Opposite Party :- Govt. Advocate,Pradeep Kumar Srivastava,Satya Sinha

Hon’ble Rajeev Misra,J.

1. Present criminal revision is directed against judgement and order dated 19.04.2005 passed by Additional Sessions Judge Court No. 9, Fatehpur, in Criminal Appeal No. 1 of 2003 (Abdul Waheed Vs. State of U.P. and another), confirming judgement and order dated 4.3.2003 passed by Judicial Magistrate Fatehpur, in Criminal Case No. 217 of 2002 (Smt. Zauhara Khatoon Vs. Abdul Waheed), whereby accused-revisionist has been convicted under Section 495 I.P.C. and therefore sentenced to two years’ rigours imprisonment along with fine of Rs. 1000/-, and further under Section 323 I.P.C. and consequently sentenced to six months’ rigours imprisonment along with fine of Rs. 500/-. In case of default in payment of fine, accused-revisionist is to further undergo imprisonment for six months. All the sentences are to run concurrently. Accused-revisionist was, however, acquitted of the charges under Sections 504 and 506 IPC for want of prosecution evidence in that regard.

2. I have heard Mr. Sharad Kumar Srivastava, learned counsel for revisionist, learned A.G.A. for State and Mrs. Stya Sinha, learned counsel for complainant opposite party No. 2.

3. Instant criminal revision came up for admission on 27.4.2005 and this Court passed the following order:-

“Summon the lower court record within eight weeks.

List on 22nd August, 2005 for final hearing.

Meanwhile, revisionist Abdul Wahid shall be released on bail on furnishing a personal bond of Rs.10000/- and two local sureties, each of like amount, to the satisfaction of the CJM concerned in Criminal Appeal No. 1 of 2003.

Realisation of fine shall also remain stayed during the pendency of this revision.

After accepting the bonds the CJM shall send the photostat copy of the same to this Court for keeping it on record.”

4. It transpires from record that complainant opposite party No. 2 filed a complaint alleging therein that her husband has performed second marriage with her without disclosing the factum of first marriage and having children from first wife. Upon receipt of complaint, Magistrate examined complainant opposite party No. 2 in terms of Section 200 Cr . P.C. and her witnesses under Section 202 Cr. P. C. Upon evaluation of allegations made in complaint as well as the statement of witnesses recorded under Section 202 Cr. P. C. Magistrate summoned accused-revisionist under Sections 496, 323, 504, 506 I.P.C. Subsequently, vide framing of charge order dated 27.1.1996, charges were framed against accused-revisionist for offences under Section 495, 323, 504, 506 I.P.C. Complainant opposite party in order to bring home the charges alleged against accused-revisionist adduced herself as P.W. 1, Hori Lal as P.W. 2, Constable Mohd. Israr as P.W. 3, Faqire Lal, Chief Pharmacist, Fatehpur Hospital as P.W. 4 and Dr. S.K. Singh, Medical Officer as P.W. 5. Apart from relying upon the oral testimony of above mentioned witnesses, complainant opposite party No. 2 also adduced documentary evidence which was as under:-

1. Ext. Ka-1 N.C.R. Report No. 136/90 under Section 323, 504 I.P.C., P.S. Thariyaon, District Fatehpur.

2. Medical Report dated 19.11.1990 pertaining to Zohara Khatoon complainant.

3. Certified copy of application dated 22.2.1991 filed by complainant under Section 125 Cr. P.C. and registered as Case No. 1650 of 1990 Zohara Khatoon Vs. Abdul Waheed.

4. True copy of oral testimony of Zohara Khatoon in Case No. 955/90 Zohara Khatoon Vs. Abdul Waheed pending in the Court of Judicial Magistrate.

5. Certified copy of judgement dated 26.11.1998 passed by Judicial Magistrate in Case No. 360/95 Zohara Khatoon Vs. Abdul Waheed under Section 125 Cr. P. C.

5. Upon appreciation of oral and documentary evidence on record, Trial Court i.e. Judicial Magistrate, Fatehpur, vide judgement and order dated 4.2.2003 convicted the revisionist for an offence punishable under Sections 495 and 323 IPC. Accordingly, accused-revisionist was sentenced to two years’ rigours imprisonment along with fine of Rs. 1000/- under Section 495 I.P.C. and further six months rigours imprisonment along with fine of Rs. 500/- under Section 323 I.P.C. Accused-revisionist was however acquitted of charges under Sections 504 and 506 IPC. In case of default, accused-revisionist was to undergo further rigours imprisonment for six months. All the sentences were to run concurrently.

6. Feeling aggrieved by aforesaid judgement and order dated 4.2.2003 passed by Judicial Magistrate, Fatehpur, accused-revisionist preferred Criminal Appeal No. 1 of 2003 (Abdul Waheed Vs. State of U.P. and another). Aforesaid appeal came to be dismissed, vide judgement and order dated 19.4.2005 passed by Additional Sessions Judge, Court No. 9, Fatehpur. As a result judgement and order dated 4.2.2003 passed by Judicial Magistrate, Fatehpur, stood confirmed.

7. Thus, feeling aggrieved by judgements and orders dated 19.4.2005 and 4.2.2003 passed by Courts below accused-revisionist has now approached this Court by means of present criminal revision.

8. Admittedly, accused-revisionist has been convicted by Court below under Sections 323, 495 I.P.C. For ready reference and better appreciation of the case aforesaid sections are reproduced herein below:-

“323. Punishment for voluntarily causing hurt. –Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.–Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­ment of either description for a term which may extend to ten years, and shall also be liable to fine.”

9. From perusal of Section 323 I.P.C., it is apparent that no minimum sentence is prescribed therein. The only limitation provided for in the Section is regarding imposition of maximum sentence. The Section, however, provides for imposition of sentence or fine or both.

10. Section 495 IPC provides punishment for an offence under Section 494 I.P.C. Therefore, offence punishable under Section 495 I.P.C. can be understood in reference to Section 494 I.P.C. For ready reference Section 494 I.P.C. is reproduced herein below:-

“494. Marrying again during lifetime of husband or wife.–Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(Exception)–This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

11. Section 495 IPC contemplates punishment for a term which may extend to 10 years and fine. However, there is no minimum sentence provided for. While offence under Section 494 IPC is non cognizable, bailable and compoundable with permission of Court, offence under Section 495 IPC on the other hand is non-cognizable, bailable, but not compoundable. Consequently, under the scheme of Section 495 IPC accused-revisionist can either be acquitted of the charge under Section 495 IPC or he has to be awarded sentence, which this Court may find commensurate with the charge alleged.

12. Before undertaking aforesaid exercise, it is useful to reiterate in brief the parameters of jurisdiction exercised by this Court under Section 397 Cr. P. C.

13. Learned counsel for the revisionist contended that Court below has not properly appreciated the evidence. He tried to take this Court to the judgements of Courts below and endeavored to show that the view taken by Court below in appreciating evidence is not correct.

14. However, I find difficult to accept the above submission for the reason that in revisional jurisdiction this Court cannot sit in appeal and re-appreciate evidence.

15. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

16. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

17. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788, it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

18. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

19. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

20. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

21. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

“The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”

22. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.”

23. In absence of anything to show as to what evidence has not been examined or the finding of fact recorded by Court below is perverse or contrary to material on record, no interference is called for.

14. It is an undisputed fact that revisionist has undergone certain period of detention in present criminal proceedings. Such a situation is taken care of by Section 428 Cr. P.C. which reads as under:-

“428. Period of detention undergone by the accused to be set off against the sentence of imprisonment—Where an accused person has, on conviction, been sentenced to imprisonment for a term , not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:

Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.”

24. Apex Court in State of U.P. Vs. Tribhuwan and others, 2018 (1) SCC, 90 while considering section 428 Cr.P.C. observed as follows in paragraphs 23 and 24:-

“23. So far as Section 428 of Code is concerned, it provides that the period of detention spent in jail as under-trial or as convict will be set off against his total jail sentence once awarded to him in connection with the same offence.

24. This Court (Three Judge Bench) had the occasion to interpret Section 428of the Code in the case of State of Maharashtra Anr. vs. Najakat Alia Mubarak Ali, (2001) 6 SCC 311 wherein this Court speaking through Justice K.T. Thomas representing majority view held as under:

“15…………We may now decipher the two requisites postulated in Section 428 of the Code:

(1) During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period.

(2) He should have been sentenced to a term of imprisonment in that case.

16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.”

25. Therefore, accused-revisionist is entitled to the benefit of sentence already undergone.

26. However, on the question of sentence, this Court is not unmindful of the observations made in State of Rajasthan Vs. Mohan Lal, AIR 2018 SC 3564, wherein following has been observed in paragraphs 9, 10, 11, 12 and 13 regarding necessity of awarding sentence and conviction :-

“9. The High Court simply brushed aside the aforementioned material facts and sentenced the accused to the period already undergone by him, which is only 6 days in this case. In our view, the Trial Court and the High Court have taken a lenient view by convicting the accused for offences under Sections 325 and 323, IPC. Absolutely no reasons, much less valid reasons, are assigned by the High Court to impose the meagre sentence of 6 days. Such imposition of sentence by the High Court shocks the judicial conscience of this Court.

10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge 6 has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly.

There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.

11. This Court in the case of Soman Vs. State of Kerala [(2013) 11 SCC 382] observed thus:

“27.1. Courts ought to base sentencing decisions on various different rationales – most prominent amongst which would be proportionality and deterrence.

27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.

27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.

27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.

27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer.

Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor.”

12. The same is the verdict of this Court in Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] wherein it is observed thus:

“84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.”

13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence.

The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.”

27. Enlightened by above noted observations made by Apex Court, this Court now has to examine the amount of sentence/fine which should be awarded to accused-revisionists, which shall commensurate with gravity of charges alleged.

28. It is an undisputed position that marriage of parties was solemnized on 3.4.1990. As such, a period of more than 29 years have rolled bye since then. It is also an undisputed position that revisionist was in service and he superannuated from his service in the year 2003. As such, revisionist is aged about 76 years. It is also not evident from record that proceedings for divorce have been initiated by opposite party No.2 on account of fraud played by revisionist. The occurrence has taken place more than 29 years ago. Revisionist was convicted by Magistrate vide judgement and order dated 4.3.2003, against which criminal appeal was filed and was dismissed on 19.4.2005. Present criminal revision was taken up on 27.4.2005. Consequently, revisionist has remained under detention from 19.4.2005 upto 28.4.2005 i.e. for 10 days. Considering aforesaid facts, conviction and sentence awarded by Court below is modified. Accordingly, accused-revisionist is granted benefit of sentence already undergone. Since this Court is taking a lenient view by altering the sentence awarded by Courts below, therefore, compensation is also liable to be imposed. Same is in conformity with law as laid down by Apex Court in Ankush Shivaji Gaikwad Vs. State of Maharashtra, reported in AIR 2013 SC 2454. Following has been observed in paragraph 62:-

“62. To sum up: While the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.”

29. As a result accused-revisionists shall deposit Rs. 1,00,000/- before Court below which shall be paid to the complainant.

30. Accordingly, this Criminal Revision partly succeeds and is partly allowed. Judgements and orders passed by Courts below shall stand modified with the sentence already undergone by accused-revisionist. However, accused-revisionist shall pay a sum of Rs. 1,00,000/- to complainant by depositing aforesaid amount before Court below within a period of one month from today, failing which, Court below shall proceed to recover the same as arrears of land revenue, as per law laid down by Apex Court in Kumaran Vs. State of Kerala and Another, reported in (2017) 7 SCC, 471.

Order Date :- 10.1.2020

HSM

 

 

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